Petition for Writ of Certiorari — John C. Kitchin, Jr., et al., Petitioners v. Bridgeton Landfill, LLC, et al.

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APPENDIX A

United States Court of Appeals, Eighth Circuit.

John C. KITCHIN; North West Auto Body; Mary

Menke, on behalf of themselves and all others similarly situated, Plaintiffs - Appellees

v.

BRIDGETON LANDFILL, LLC; Republic Services,

Inc.; Allied Services; Rock Road Industries, Inc., Defendants - Appellants

No. 19-2072

Submitted: January 14, 2021

Filed: July 8, 2021

Appeal from United States District Court for the

Eastern District of Missouri - St. Louis

Celeste Brustowicz, Victor T. Cobb, Barry J.

Cooper, Jr., Stuart H. Smith, COOPER LAW FIRM,

New Orleans, LA, Nathaniel R. Carroll, ARCH CITY

DEFENDERS, Saint Louis, MO, Anthony D. Gray,

JOHNSON & GRAY, Clayton, MO, Ryan A. Keane,

Saint Louis, MO, Ron A. Rustin, Gretna, LA, for

Plaintiffs - Appellees.

William Garland Beck, Allyson Elisabeth Cunningham, LATHROP GPM LLP, Kansas City, MO,

for Defendants - Appellants.

Before GRUENDER, BENTON, and STRAS, Circuit Judges.

GRUENDER, Circuit Judge.

Bridgeton Landfill, LLC; Republic Services, Inc.;

and Allied Services, LLC (“Appellants”) challenge

the district court’s decision to remand this removed

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action to state court under the local-controversy exception to the Class Action Fairness Act of 2005

(“CAFA”). See 28 U.S.C. § 1332(d)(4)(A). We reverse.

I.

At first in connection with the Manhattan Project

during World War II and then for the federal government after the war, a government contractor refined uranium at a facility in downtown St. Louis,

Missouri in the 1940s and 1950s. 1 Unsurprisingly,

this activity created radioactive waste. Accordingly,

the Manhattan Project acquired a tract of land near

the present-day St. Louis Lambert International

Airport in St. Louis County to store the waste. The

Cotter Corporation (which is not a party in this action) later acquired some of this waste, and in 1973

it dumped more than 46,000 tons of a soil-andradioactive-waste mixture at the West Lake Landfill

in Bridgeton, Missouri. That soil-waste mixture was

then used as cover for municipal refuse dumped in

the landfill. In 1990, the Environmental Protection

Agency (“EPA”) placed the West Lake Landfill on the

Superfund National Priorities List for site investigation and cleanup. See 42 U.S.C. § 9605.

Since 1995, John C. Kitchin, Jr., has owned property in Bridgeton, Missouri adjacent to the West

Lake Landfill, where his family owns and operates

the North West Auto Body Company. Mary Menke

also owns property in Bridgeton, Missouri near the

landfill. After learning in 2017 and 2018 that their

properties were contaminated with radioactive maThe factual background in the first two paragraphs here is

taken from the complaint and, where the complaint is vague,

from Appellants’ notice of removal.

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terial, Kitchin, North West Auto Body Company, and

Menke (“Plaintiffs”) filed a class-action complaint in

Missouri state court against Bridgeton Landfill,

LLC; Republic Services, Inc.; Allied Services, LLC;

and Rock Road Industries, Inc. (“Defendants”). In

their complaint, Plaintiffs alleged that Defendants

“owned and/or operated” the West Lake Landfill and

were responsible for the contamination of Plaintiffs’

property, which Plaintiffs claimed occurred due to

Defendants’ allegedly improper acceptance and handling of radioactive waste at the landfill. Plaintiffs

sought to represent two different subclasses consisting of Missouri citizens who either owned or resided

on property within an eleven-square-mile region

around the West Lake Landfill. The complaint asserted seven state-law tort claims and sought compensatory damages, punitive damages, and injunctive relief.

It is undisputed here that, of the Defendants, only

Rock Road Industries was a citizen of Missouri at

the time Plaintiffs filed their complaint. Shortly after Plaintiffs filed their complaint, however, Rock

Road Industries merged into Bridgeton Landfill,

with Bridgeton Landfill being the surviving entity.

Appellants then removed the action to federal

court. As grounds for removal, Appellants claimed

that federal-question jurisdiction existed under the

Price-Anderson Act (“PAA”), 42 U.S.C. § 2011 et seq.,

as well as the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., and they asserted

that diversity jurisdiction existed under CAFA, 28

U.S.C. § 1332(d)(2). Plaintiffs moved to remand, arguing that their complaint did not trigger federal-

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question jurisdiction under either the PAA or CERCLA and that the district court had to “decline to exercise [CAFA] jurisdiction” because CAFA’s localcontroversy exception applied. See 28 U.S.C. §

1332(d)(4). The district court agreed, concluding that

federal-question jurisdiction did not exist and that

the local-controversy exception applied, so it granted

Plaintiffs’ motion to remand. On appeal, Appellants

challenge the district court’s application of the localcontroversy exception.

II.

Before proceeding to the merits, first we must address Plaintiffs’ claim that we lack jurisdiction over

this appeal. See, e.g., Arnold Crossroads, L.L.C. v.

Gander Mountain Co., 751 F.3d 935, 938 (8th Cir.

2014) (“Our first consideration on review is whether

we have appellate jurisdiction over [the defendant’s]

appeal of the district court’s remand order.”). Under

28 U.S.C. § 1291, we typically have appellate jurisdiction over final decisions and certain collateral orders of the district courts. See Dig. Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct.

1992, 128 L.Ed.2d 842 (1994). Apparently presuming

that the district court’s remand order is not a final

decision, Plaintiffs argue that we lack appellate jurisdiction under § 1291 because the remand order is

not an appealable collateral order. See Quackenbush

v. Allstate Ins., 517 U.S. 706, 712, 116 S.Ct. 1712,

135 L.Ed.2d 1 (1996) (discussing the collateral-order

doctrine). Seemingly in the alternative, they also

contend that 28 U.S.C. § 1453(c), a CAFA-specific

grant of permissive appellate jurisdiction over remand orders, was Appellants’ “only ... pathway for

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appellate review” of the district court’s remand order, which we closed off when we previously denied

Appellants permission to appeal under § 1453(c).

Our precedent forecloses these arguments. In

Jacks v. Meridian Resource Co., we held that a remand order was both “final and appealable as a collateral order under § 1291” insofar as it was based

on the district court’s determination that the localcontroversy exception applied. 701 F.3d 1224, 1229

(8th Cir. 2012) (citing Quackenbush, 517 U.S. at 71114, 116 S.Ct. 1712). And, after recognizing that we

had previously denied the appellants permission to

appeal under § 1453(c), we nevertheless proceeded to

address their separately filed § 1291 appeal, concluding that we had jurisdiction under § 1291 to review

the district court’s application of the localcontroversy exception. Id. at 1128 n.2, 1229; see also

Hunter v. City of Montgomery, 859 F.3d 1329, 1334

& n.3 (11th Cir. 2017) (explaining that § 1291 provides “an alternative basis for appellate jurisdiction”

in addition to § 1453(c) to review remand orders

based on CAFA’s exceptions). Therefore, Jacks provides that we have jurisdiction under § 1291 over

this appeal.

Accordingly, we proceed to the merits.

III.

The sole issue on appeal is whether CAFA’s localcontroversy exception requires remand in this case,

as the district court found. We review this issue de

novo. Graphic Commc’ns Local 1B Health & Welfare

Fund A v. CVS Caremark Corp., 636 F.3d 971, 973

(8th Cir. 2011); Opelousas Gen. Hosp. Auth. v. FairPay Sols., Inc., 655 F.3d 358, 360 (5th Cir. 2011).

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CAFA gives federal district courts subject-matter

jurisdiction over class actions like this one, where

the parties are minimally diverse (meaning any class

member and any defendant are citizens of different

states), all proposed plaintiff classes include at least

100 members in total, and the amount in controversy

exceeds $5,000,000. See Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010) (citing 28 U.S.C. § 1332(d)). Under CAFA’s localcontroversy exception, however, a federal district

court “shall decline to exercise jurisdiction”:

(i) over a class action in which—

(I) greater than two-thirds of the members of

all proposed plaintiff classes in the aggregate

are citizens of the State in which the action

was originally filed;

(II) at least 1 defendant is a defendant—

(aa) from whom significant relief is sought by

members of the plaintiff class;

(bb) whose alleged conduct forms a significant basis for the claims asserted by the

proposed plaintiff class; and

(cc) who is a citizen of the State in which the

action was originally filed; and

(III) principal injuries resulting from the alleged conduct or any related conduct of each

defendant were incurred in the State in which

the action was originally filed; and

(ii) during the 3-year period preceding the filing of

that class action, no other class action has been

filed asserting the same or similar factual allegations against any of the defendants on behalf of

the same or other persons ....

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28 U.S.C. § 1332(d)(4)(A).

Although the exception is an abstention doctrine

rather than a jurisdictional rule, Graphic Commc’ns,

636 F.3d at 973, it is mandatory, Westerfeld, 621

F.3d at 822. The party seeking remand on this basis

has the burden to establish that the exception applies. Westerfeld, 621 F.3d at 822. And, given that

the exception’s provisions are listed in the conjunctive, see Erdahl v. Comm’r, 930 F.2d 585, 591 n.8

(8th Cir. 1991), the proponent of remand must show

that each provision is met in order to trigger mandatory abstention, see, e.g., Atwood v. Peterson, 936

F.3d 835, 841 & n.5 (8th Cir. 2019) (per curiam);

Opelousas, 655 F.3d at 361; Coleman v. Estes Express Lines, Inc., 631 F.3d 1010, 1013 (9th Cir. 2011).

In considering whether the party seeking remand

has met this burden, we must bear in mind that the

“language and structure of CAFA” indicate that

Congress contemplated broad federal court jurisdiction, see Westerfeld, 621 F.3d at 822, and that the local-controversy exception is a “narrow,” nonjurisdictional exception to CAFA’s grant of jurisdiction, see

Hargett v. RevClaims, LLC, 854 F.3d 962, 965 (8th

Cir. 2017); Graphic Commc’ns, 636 F.3d at 973.

Thus, “any doubt about the applicability of CAFA’s

local-controversy exception” must be resolved

against the party seeking remand and in favor of retaining jurisdiction over the case. Westerfeld, 621

F.3d at 823. After all, “federal courts ‘have a strict

duty to exercise the jurisdiction that is conferred upon them by Congress,’ ” abstention is an “ ‘extraordinary and narrow exception’ to that duty,” and thus

“only the ‘clearest of justifications’ will justify abstention.” Mason v. Lockwood, Andrews & Newnam,

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P.C., 842 F.3d 383, 397 (6th Cir. 2016) (Kethledge,

J., dissenting) (quoting first Quackenbush, 517 U.S.

at 716, 116 S.Ct. 1712, then Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813,

96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), then Rouse v.

DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir.

2002)) (discussing the local-controversy exception).

Appellants argue that Plaintiffs failed to show

that any subpart of § 1332(d)(4)(A)(i)(II)—the significant-relief requirement (subpart (aa)), the significant-basis requirement (subpart (bb)), or the localdefendant requirement (subpart (cc))—is met in this

case. For the following reasons, we agree that Plaintiffs failed to carry their burden to show that the

conduct of Rock Road Industries—the only Missouricitizen defendant and thus the only possible “local

defendant” for purposes of these requirements—

“forms a significant basis for the claims asserted” in

the complaint. See § 1332(d)(4)(A)(i)(II)(bb). 2

A.

Under the significant-basis requirement, the party seeking remand must show that a local defendant’s “alleged conduct forms a significant basis for

the claims asserted by the proposed plaintiff class.” §

1332(d)(4)(A)(i)(II)(bb). The district court observed

that Plaintiffs alleged in their complaint that Defendants “all engaged in the same conduct” that

caused Plaintiffs’ claimed injuries, and it concluded

As this conclusion suffices to reverse, we do not address

whether Plaintiffs established that they sought significant relief from Rock Road Industries or that the now-nonexistent

Rock Road Industries “is” a Missouri citizen for purposes of the

exception. See, e.g., Atwood, 936 F.3d at 841 & n.5.

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that these allegations demonstrated that Rock Road

Industries’ conduct forms a significant basis for

Plaintiffs’ claims. We agree that, with rare exception, see infra Section III.B., Plaintiffs simply alleged

that “Defendants” engaged in conduct causing Plaintiffs’ injuries without identifying specific acts of each

defendant or otherwise parsing out in any meaningful way Rock Road Industries’ particular, injurycausing conduct. But we disagree that these collective allegations against Defendants suffice to show

that Rock Road Industries’ conduct meets the significant-basis requirement.

“CAFA itself does not describe the type or character of conduct that would form a ‘significant basis’ of

plaintiffs’ claims ....” Woods v. Standard Ins., 771

F.3d 1257, 1265 (10th Cir. 2014). That said, in

Westerfeld, we adopted the Third Circuit’s comparative approach to analyzing this issue. 621 F.3d at

825 (following Kaufman v. Allstate N.J. Ins., 561

F.3d 144 (3d Cir. 2009)). In Kaufman, the Third Circuit reasoned that, “[i]n relating the local defendant’s alleged conduct to all the claims asserted in the

action, the significant basis provision effectively calls

for comparing the local defendant’s alleged conduct

to the alleged conduct of all the Defendants.” 561

F.3d at 156. Thus, deciding whether the significantbasis requirement is met “requires a substantive

analysis comparing the local defendant’s alleged

conduct to the alleged conduct of all the Defendants.”

Id. Given the plain meaning of “significant,” this

comparative approach requires that the party seeking remand show that the local defendant’s conduct

is “an important ground for the asserted claims in

view of the alleged conduct of all the Defendants.”

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Id. at 157; see also “Significant,” Black’s Law Dictionary (11th ed. 2019) (defining “significant” to

mean “[o]f special importance; momentous”).

Since the time we followed Kaufman in Westerfeld, other circuits have done the same. E.g., Mason,

842 F.3d at 395-96 (majority opinion); Benko v. Quality Loan Serv. Corp., 789 F.3d 1111, 1118 (9th Cir.

2015); Woods, 771 F.3d at 1266; Opelousas, 655 F.3d

at 361. Even so, courts applying this approach have

split regarding what it requires. Some courts, like

the district court here, have adopted the view that

allegations that the local and nonlocal defendants

“all engaged in the same conduct” suffice to show

that the local defendant’s conduct meets the significant-basis requirement. See, e.g., City of O’Fallon v.

CenturyLink, Inc., 930 F. Supp. 2d 1035, 1049-51

(E.D. Mo. 2013) (citing Coleman, 631 F.3d at 1020).

In Atwood, however, we joined a number of courts

taking the opposite view and found that a complaint

that did “not allege any substantive distinctions between the conduct” of the local and nonlocal defendants failed to “indicate whether the local defendants’

alleged conduct is ‘an important ground for the asserted claims in view of the alleged conduct of all the

Defendants.’” 936 F.3d at 840 (quoting Westerfeld,

621 F.3d at 825); see also Opelousas, 655 F.3d at 359,

362-63 (finding that the significant-basis requirement was not met where “nothing in the complaint

distinguishe[d] the conduct of [the local defendant]

from the conduct of the other defendants” and requiring “more detailed allegations or extrinsic evidence detailing the local defendant’s conduct in relation to the out-of-state defendants” to meet the requirement); accord White Knight Diner, LLC v. Arb.

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Forums, Inc., No. 4:17-CV-02406 JAR, 2018 WL

398401, at *5 (E.D. Mo. Jan. 12, 2018); Johnson v.

Courtyard Rehab. & Health Ctr., LLC, No. 17-CV01053, 2018 WL 4183246, at *4-5 (W.D. Ark. Jan. 8,

2018); Green v. Skyline Highland Holdings LLC, No.

4:17-CV-00534 BSM, 2017 WL 6001498, at *3 (E.D.

Ark. Dec. 4, 2017); cf. Mason, 842 F.3d at 399-400

(Kethledge, J., dissenting) (asserting that the plaintiffs’ allegations, in which the local and nonlocal defendant were referred to jointly by a collective noun

that was “the subject of every verb describing conduct allegedly forming the basis of the plaintiffs’

claims,” did not satisfy the significant-basis requirement); Evans v. Walter Indus., Inc., 449 F.3d

1159, 1167 (11th Cir. 2006) (finding that the significant-basis requirement was not met because the evidence proffered to make this showing gave “no insight” into the local defendant’s comparative “role in

the alleged contamination”). Under Atwood, “CAFA

removal is not foreclosed by [a] complaint’s conclusory allegations that the local defendants engaged in

the same conduct as the [nonlocal] defendant.” 936

F.3d at 840-41 (disagreeing with the “rulings to the

contrary” in Coleman, 631 F.3d 1010).

Thus, following Atwood, the district court’s reasoning—that Plaintiffs’ allegations of how Defendants “all engaged in the same conduct” suffice to satisfy the significant-basis requirement—contravenes

the law of this circuit. If “nothing in the complaint

distinguishes the conduct of [Rock Road Industries]

from the conduct of the other defendants,” Opelousas, 655 F.3d at 362, then the allegations in the

complaint do not satisfy the significant-basis requirement. Such collective allegations leave “doubt”

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about the comparative significance of Rock Road Industries’ conduct, preventing remand under the local-controversy exception. See Westerfeld, 621 F.3d

at 823.

B.

Besides defending the district court’s reasoning,

Plaintiffs also point out that they “do make different

allegations” about Rock Road Industries’ conduct

compared to the other defendants’ conduct. They call

our attention to four sentences in three paragraphs

of their 199-paragraph complaint that specifically

mention Rock Road Industries, and they contend

that these allegations suffice to establish that Rock

Road Industries’ conduct is “significant” for CAFA

purposes. We disagree.

The first allegation is that “Rock Road Industries,

Inc. ... owned or owns the West Lake Landfill.” But

in corresponding allegations about the other defendants, Plaintiffs alleged that Bridgeton Landfill also

owns the West Lake Landfill; that Allied Services

“operates ... [the] West Lake Landfill[ ]”; and that

Republic Services “owns, oversees, and directs the

environmental decisions and conduct” of the other

three defendants “and operates the ... West Lake

Landfill[ ].” Particularly because Plaintiffs’ claims

largely are predicated on how Defendants have

managed and operated the landfill, we fail to see

how this allegation shows that Rock Road Industries’

conduct is “an important ground for the asserted

claims in view of the alleged conduct of all the Defendants.” See Westerfeld, 621 F.3d at 825. If anything, the allegation that Republic Services “owns,

oversees, and directs the environmental decisions

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and conduct” of Rock Road Industries as well as the

other two defendants suggests the opposite. See Atwood, 936 F.3d at 838, 840-41 (concluding that a local defendant’s conduct was not “significant” because

extrinsic evidence showed that the local defendant’s

injury-causing conduct was mandated by the nonlocal defendant); Mason, 842 F.3d at 400 (Kethledge,

J., dissenting) (concluding the same in light of similar allegations in the complaint at issue there).

The second allegation is that “[t]his lawsuit arises

out of damages that resulted from Rock Road Industries, Inc.’s acts and omissions within the State of

Missouri.” But the complaint contains verbatim allegations about the other three defendants. Nothing

about this allegation “distinguishes the conduct of

[Rock Road Industries] from the conduct of the other

defendants.” See Opelousas, 655 F.3d at 362. To the

contrary, this cut-and-paste approach illustrates

how Plaintiffs’ complaint fails to differentiate meaningfully between Rock Road Industries’ conduct and

the other defendants’ conduct.

The third allegation is that “Rock Road Industries

has maintained daily operational and managerial

control over the management and environmental decisions of the West Lake Landfill, decisions which

gave rise to the violations of law and damage to

property alleged in this [complaint].” But in corresponding allegations about the other three defendants, the complaint includes materially identical allegations about their conduct. To the extent these

parallel allegations differ, they do so because Plaintiffs alleged more about the other defendants’ conduct than they did about Rock Road Industries’ conduct. Thus, any “substantive distinctions” revealed

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by these allegations undermine rather than support

the conclusion that Rock Road Industries’ conduct

“forms a significant basis for [Plaintiffs’] claim[s].”

See Atwood, 936 F.3d at 840.

The fourth allegation is that Rock Road Industries

is a Missouri citizen “whose conduct forms a significant basis” for Plaintiffs’ claims. This allegation,

parroting the language of the significant-basis requirement, is a legal conclusion. See §

1332(d)(4)(A)(i)(II)(bb). Ordinarily, in determining

the sufficiency of a pleading, “we need not accept as

true a plaintiff’s conclusory allegations or legal conclusions drawn from the facts.” Glick v. W. Power

Sports, Inc., 944 F.3d 714, 717 (8th Cir. 2019). We

see no reason to depart from that rule in this context, particularly because we already have rejected

the idea that “conclusory allegations” can suffice to

satisfy the significant-basis requirement, Atwood,

936 F.3d at 841, and because the Supreme Court has

admonished against adopting rules in the CAFA context that would “exalt form over substance,” Standard Fire Ins. v. Knowles, 568 U.S. 588, 595, 133 S.Ct.

1345, 185 L.Ed.2d 439 (2013); cf. Woods, 771 F.3d at

1265 (“[W]e interpret the significant local defendant

requirement strictly so that plaintiffs and their attorneys may not defeat CAFA jurisdiction by routinely naming at least one state citizen as a defendant, irrespective of whether that defendant is actually a primary focus of the litigation.”). Thus, this

pleaded legal conclusion does not establish that Rock

Road Industries’ conduct forms a significant basis for

Plaintiffs’ claims. See Atwood, 936 F.3d at 840.

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C.

Finally, going beyond the allegations in their

complaint, Plaintiffs invite us to take judicial notice

of the EPA’s 2018 Amended Record of Decision concerning the West Lake Landfill and a 1993 Consent

Order referred to in that document. They argue that

these materials, showing that the EPA deemed Rock

Road Industries (along with three other entities) a

“potentially responsible party” (“PRP”) for cleaning

up the landfill under CERCLA, demonstrate that

Rock Road Industries’ conduct meets the significantbasis requirement. See Atwood, 936 F.3d at 840

(holding that extrinsic evidence may be considered in

determining whether the significant-basis requirement is met). Even assuming that we may take judicial notice of and consider this factual material

seemingly presented for the first time on appeal, but

see Kohley v. United States, 784 F.2d 332, 334 (8th

Cir. 1986) (per curiam), we do not find that these

materials carry Plaintiffs’ burden.

Under CERCLA, “even parties not responsible for

contamination may fall within the broad definitions

of PRPs” in 42 U.S.C. § 9607(a)(1)-(4), United States

v. Atl. Rsch. Corp., 551 U.S. 128, 136, 127 S.Ct. 2331,

168 L.Ed.2d 28 (2007), and “a party that falls within

any of the four PRP categories of [§ 9607(a)] may be

held jointly and severally liable by the government

for the entire cost of a cleanup, even if the party is

‘innocent’ in the sense that it did not contribute to

the pollution at the site,” Solutia, Inc. v. McWane,

Inc., 726 F. Supp. 2d 1316, 1331 (N.D. Ala. 2010).

The four PRP categories in § 9607(a) are (1) current

owners or operators of a waste facility, (2) any previous owner or operator of a waste facility during any

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time in which hazardous substances were disposed of

at the waste facility, (3) any person who arranged for

disposal or treatment of hazardous substances at a

waste facility, and (4) any person who transported

hazardous substances to a waste facility.

The 2018 Amended Record of Decision simply indicates that Rock Road Industries was designated a

PRP; it does not explain why. In light of the fact that

even an “innocent” party can be designated a PRP,

Solutia, 726 F. Supp. 2d at 1331, this designation

without more does not demonstrate, and certainly

not beyond “doubt,” that Rock Road Industries’ conduct forms a significant basis for Plaintiffs’ claims,

see Westerfeld, 621 F.3d at 823.

In contrast, the 1993 Consent Order does suggest

why the EPA designated Rock Road Industries a

PRP, but the information it contains on this point

does not carry Plaintiffs’ burden. In that order, the

EPA designated four entities as PRPs: Rock Road

Industries; Laidlaw Waste Systems (Bridgeton), Inc.,

which later merged into Bridgeton Landfill; Cotter

Corporation; and the Department of Energy. Notably, while the EPA indicated that Cotter Corporation

and the Department of Energy were designated

PRPs because they arranged for the disposal of the

radioactive waste at the landfill, see § 9607(a)(3),

and it indicated that Bridgeton Landfill’s predecessor was designated a PRP because it was an owner

or operator of the landfill at the time of the disposal,

see § 9607(a)(2), all it said about Rock Road Industries’ PRP designation was that Rock Road Industries was “a current owner” of the landfill, see §

9607(a)(1). But a “current owner” can be designated

a PRP under § 9607(a)(1) “without regard to causa-

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tion.” New York v. Shore Realty Corp., 759 F.2d

1032, 1044 (2d Cir. 1985); see also Canadyne-Ga.

Corp. v. NationsBank, N.A. (S.), 183 F.3d 1269, 1275

(11th Cir. 1999) (“[T]he owner of land is directly liable under CERCLA, regardless of whether he or she

caused or contributed to the release of hazardous

substances there.”). Thus, the reason for Rock Road

Industries’ designation as a PRP leaves open the

possibility, particularly when contrasted with the

reasons provided for the other entities’ designations

as PRPs, that the EPA deemed Rock Road Industries

a PRP even though its conduct ostensibly giving rise

to Plaintiffs’ claims was not “significant” for purposes of the local-controversy exception. Thus, the 1993

Consent Order also does not demonstrate, and again

certainly not beyond “doubt,” that Rock Road Industries’ conduct forms a significant basis for Plaintiffs’

claims. See Westerfeld, 621 F.3d at 823.

***

In sum, Plaintiffs’ allegations that Defendants all

engaged in the same conduct giving rise to Plaintiffs’

claims do not satisfy the significant-basis requirement. The few allegations in Plaintiffs’ complaint

that refer specifically to Rock Road Industries and

its conduct also fail to satisfy this requirement. And

the extrinsic evidence Plaintiffs call our attention to

does not carry their burden to show this requirement

is satisfied. Accordingly, the local-controversy exception does not apply in this case, and the district court

erred in concluding otherwise.

IV.

For the foregoing reasons, we reverse the district

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court’s order remanding this action back to state

court, and we remand for further proceedings.

STRAS, Circuit Judge, concurring in the judgment.

The court’s conclusion is the right one, but I would

follow a simpler route to get there. Under the localcontroversy exception, “[a] district court shall decline

to exercise jurisdiction” if, among other requirements, “at least 1 defendant is a defendant ... who is

a citizen of the State in which the action was originally filed.” 28 U.S.C. § 1332(d)(4)(A)(i)(II)(cc). The

only Missouri citizen that has ever been a defendant

is Rock Road Industries, Inc. But between the time

this case was filed and when it was removed to federal court, Rock Road merged with another company

and ceased to exist as a separate entity. This unusual set of facts leads to a straightforward question:

when must there be a local defendant, at the time of

initial filing or at the time of removal?

The text provides the answer. It twice uses the

present-tense verb “is,” id., and “the present tense

generally does not include the past,” Carr v. United

States, 560 U.S. 438, 448, 130 S.Ct. 2229, 176

L.Ed.2d 1152 (2010). So what matters is whether a

local defendant exists when the district court “exercise[s] jurisdiction,” which happens at the time of

removal in cases like this one, not at initial filing. 28

U.S.C. § 1332(d)(4)(A); see Kaufman v. Allstate N.J.

Ins., 561 F.3d 144, 153 (3d Cir. 2009) (“[T]he local

controversy exception requires consideration of the

defendants presently in the action.”). Indeed, when

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filing is the focus, the statute drives that point home,

either explicitly or by using the past tense. See, e.g.,

28 U.S.C. § 1332(d)(4)(A)(i)(II)(cc), (4)(A)(ii), (7) (referring to “the State in which the action was originally filed,” requiring that no overlapping class actions have been filed “during the 3-year period preceding the filing of th[is] class action,” and specifying

that plaintiffs’ citizenship generally “shall be determined ... as of the date of filing of the complaint or

amended complaint” (emphasis added)).

All signs, in other words, point to evaluating the

defendants’ citizenship under the local-controversy

exception at the time of removal. Cf. Mansfield,

Coldwater & Lake Mich. Ry. v. Swan, 111 U.S. 379,

381–82, 4 S.Ct. 510, 28 L.Ed. 462 (1884) (stating

that “the difference of citizenship on which the right

of removal depends must have existed ... at the time

of the removal” (emphasis added)). By then, Rock

Road was gone and there was no one left to fill the

role of “a defendant ... who is a citizen of the State in

which the action was originally filed.” 28 U.S.C. §

1332(d)(4)(A)(i)(II)(cc). Without a local defendant,

there is no local controversy, so I agree that this case

must remain in federal court.

20a

APPENDIX B

United States District Court, E.D. Missouri,

Eastern Division.

John C. KITCHIN, Jr., North West Auto Body Company, and Mary Menke, on behalf of themselves and

all others similarly situated, Plaintiffs,

v.

BRIDGETON LANDFILL, LLC, et al., Defendants.

No. 4:18 CV 672 CDP

Signed 05/08/2019

Anthony D. Gray, Johnson Gray LLC, Kimberly

Starr Morr, The Driscoll Firm, P.C., Nathaniel Richard Carroll, Ryan A. Keane, Keane Law LLC, Alexander L. Braitberg, Schlichter and Bogard, LLP, St.

Louis, MO, Barry James Cooper, Jr., Celeste

Brustowicz, Victor T. Cobb, The Cooper Law Firm,

LLC, New Orleans, LA, Ron A. Rustin, Gretna, LA,

for Plaintiffs.

Allyson Elisabeth Cunningham, Peter F. Daniel,

William Garland Beck, Lathrop and Gage, LLP,

Kansas City, MO, Patricia L. Silva, Lathrop and

Gage, LLP, Clayton, MO, for Defendants.

MEMORANDUM AND ORDER OF REMAND

CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

Plaintiffs John C. Kitchin, Jr., North West Auto

Body Company, and Mary Menke are property owners seeking damages and injunctive relief for radioactive contamination of their respective properties

allegedly caused by neighboring West Lake Landfill,

located in North St. Louis County, Missouri. Plain-

21a

tiffs assert that their property has been damaged by

soil, dust, and air contamination from improper generation, handling, storage, and disposal of radioactive materials by four corporate defendants who are

landfill owners and operators.

Plaintiffs originally filed this suit in St. Louis

County Circuit Court on behalf of themselves and all

other others similarly situated, pleading various

state-law tort theories. Defendants removed the action to this Court arguing that the allegations arise

under federal law – specifically the Price-Anderson

Act (PAA) as amended in 1988, 42 U.S.C. §§ 2011, et

seq., which provides a federal compensation regime

for damages resulting from a nuclear incident; and

the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§

9601, et seq., which established a federal “Superfund” to clean up uncontrolled or abandoned hazardous-waste sites, and provides for liability of persons

responsible for releases of hazardous waste at these

sites. In their removal petition, defendants also invoked the Class Action Fairness Act (CAFA), 28

U.S.C. §§ 1332(d), 1453, which permits federal courts

to preside over certain class actions in diversity jurisdiction where the aggregate amount in controversy exceeds $5 million; where the class comprises at

least 100 plaintiffs; and where there is at least “minimal diversity” between the parties, i.e., at least one

plaintiff class member is diverse from at least one

defendant.

Plaintiffs move to remand this case to state court.

I will grant the motion.

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Background

From 1942 to 1957, uranium ore was processed into various uranium compounds at a facility located

in downtown St. Louis, Missouri, as part of the

Manhattan Project – a United States research project designed to develop the first nuclear weapons. In

the late 1940’s, the Manhattan Project acquired an

additional tract of land near Lambert Airport – the

St. Louis Airport Site (“SLAPS”) – for storage of radioactive wastes from the uranium processing occurring at the downtown site. Contaminated scrap was

also stored at the SLAPS site.

In the 1960’s, some of the radioactive wastes were

moved from SLAPS to a storage site on Latty Avenue in Hazelwood, Missouri (“Latty Site”). In 1973,

the defendant landfill owners and operators accepted

over 46,000 tons of these radioactive wastes mixed

with contaminated soil and used this mixture as daily cover for the West Lake Landfill located in Bridgeton, Missouri (“Landfill”). 1 The Landfill is not a licensed nuclear facility. According to the plaintiffs,

despite knowing that the Landfill was not permitted

to accept radioactive material and was never an adequate storage or disposal site for radioactive wastes,

the defendants nevertheless dumped the wastes into

the Landfill and spread them over a large area.

Plaintiffs claim that about 15 acres of the Landfill

are filled with radioactive wastes at a depth of up to

In their amended petition, plaintiffs define their use of the

term “Landfill” as referring to “several inactive landfills including West Lake and Bridgeton” Landfills. Amd. Petn., ECF No.

13 at ¶ 4. However, because their specific allegations name

West Lake Landfill alone, it appears that that landfill is the

only relevant landfill at issue in this case.

1

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20 feet. Plaintiffs contend that because of defendants’ spread and improper storage of these wastes,

radioactive material has contaminated soil, water,

and air, resulting in the contamination of surrounding communities where their properties are located.

A subsurface fire currently exists at the Landfill

and emits noxious and offensive odors. Plaintiffs

claim that defendants are permitting the fire to

spread uncontrolled, which could affect the radioactively-contaminated areas of the Landfill and cause

increased risk of radioactive exposure to persons in

the surrounding area.

As of December 31, 2004, the Landfill stopped accepting waste and is now used only as a transfer station. The Landfill is currently a Superfund site under the regulation of the Environmental Protection

Agency (EPA) pursuant to CERCLA.

None of the defendants have entered into indemnification agreements with the United States government with respect to the complained-of activities.

Plaintiffs’ Properties

In 1995, plaintiff Kitchin purchased real property

in Bridgeton, Missouri, adjacent to the Landfill. His

family-owned-and-operated business, North West

Auto Body Company, is located on the property.

Kitchin first learned in 2017 that the property and

the building housing the business were contaminated with radioactive material. Kitchin and his company contend that the auto body shop has lost significant business, revenue, and customers as a result of

the contamination, and will lose future business and

incur relocation costs.

24a

Plaintiff Menke owns real property in Bridgeton,

Missouri. She learned in 2018 that her property and

the structure on it were contaminated with radioactive material.

Plaintiffs frequently experience offensive odors

emanating from the Landfill. Samples taken on and

around plaintiffs’ properties confirm a highlyelevated presence of radioactive particles matching

the fingerprint of the radioactive wastes dumped at

the Landfill. Trees in the vicinity of the North West

Auto Body property contain radiological and organic

contamination. Plaintiffs claim that the radioactive

contamination of their property migrated from the

Landfill and was caused by defendants’ improper

handling, storage, and disposal of radioactive materials. They claim that such contamination and offensive odors render their properties unfit for normal

use and enjoyment, and have destroyed the fair

market value of the properties.

The Amended Petition

Plaintiffs filed their original petition in state court

on February 20, 2018, and an amended petition on

April 2, 2018. The case was removed to this Court on

April 27, 2018. The amended petition remains the

operative petition in this action.

Named as defendants in the amended petition are

the owners of the Landfill – Bridgeton Landfill, LLC

and Rock Road Industries, Inc.; and the operators of

the Landfill – Republic Services, Inc. and Allied Services, LLC. Defendant Bridgeton Landfill removed

the action from state court with the consent of defendants Republic Services and Allied Services. In

the notice of removal, Bridgeton Landfill averred

25a

that named defendant Rock Road Industries merged

into Bridgeton Landfill on April 9, 2018, after the

amended petition was filed.

In their amended petition, plaintiffs assert the following state-law claims against all defendants: (1)

trespass, (2) permanent nuisance, (3) temporary nuisance, (4) negligence, (5) negligence per se, (6) strict

liability/absolute liability, (7) injunctive relief seeking scientific and medical monitoring, (8) civil conspiracy, and (9) punitive damages. As relief, plaintiffs seek damages resulting from the loss of use and

enjoyment of their property, for annoyance and discomfort, for damage to personal property, and for

diminution in the market value of their property.

Plaintiffs also seek recovery of costs and expenses

incurred as a result of their exposure to radioactive

emissions, including the cost of remediation and relocation. They also seek statutory damages under

Missouri law, punitive and exemplary damages,

costs and attorneys’ fees, and interest on all of the

requested monetary relief. Finally, plaintiffs seek

injunctive relief enjoining defendants from continuing in the unlawful conduct, directing defendants to

identify members of the class for compensation, and

compelling defendants to clean up all contamination

and to provide medical monitoring.

For the following reasons, I do not have jurisdiction over plaintiffs’ claims or over this action. I will

therefore remand this case to state court.

Legal Standard

Federal courts are courts of limited jurisdiction.

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). “It

26a

is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the

contrary rests upon the party asserting jurisdiction.”

Id. (citations omitted).

A federal district court may exercise removal jurisdiction only where the court would have had original subject-matter jurisdiction had the action initially been filed there. Krispin v. May Dep’t Stores

Co., 218 F.3d 919, 922 (8th Cir. 2000) (citing 28

U.S.C. § 1441(b)). The party seeking removal and

opposing remand carries the burden of establishing

federal subject-matter jurisdiction by a preponderance of the evidence. Kokkonen, 511 U.S. at 377, 114

S.Ct. 1673; In re Prempro Prods. Liab. Litig., 591

F.3d 613, 620 (8th Cir. 2010). Generally, a court

must resolve all doubts about federal jurisdiction in

favor of remand to state court. In re Prempro, 591

F.3d at 620.

Federal-Question Jurisdiction

“The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint

rule,’ which provides that federal jurisdiction exists

only when a federal question is presented on the face

of the plaintiff’s properly pleaded complaint.” Bowler

v. Alliedbarton Sec. Servs., LLC, 123 F. Supp. 3d

1152, 1155 (E.D. Mo. 2015) (quoting Caterpillar Inc.

v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96

L.Ed.2d 318 (1987)). See also Gaming Corp. of Am. v.

Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir. 1996)

(“The ‘well-pleaded complaint rule’ requires that a

federal cause of action must be stated on the face of

the complaint before the defendant may remove the

action based on federal question jurisdiction.”) (quot-

27a

ing Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425). Because federal law provides that plaintiffs are the

“masters” of their claims, plaintiffs “may avoid federal jurisdiction by exclusive reliance on state law.”

Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425.

In cases where a cause of action based on a federal

statute does not appear on the face of the complaint,

preemption based on a federal statutory scheme may

nevertheless apply in circumstances where “the preemptive force of a statute is so extraordinary that it

converts an ordinary state common-law complaint

into one stating a federal claim.” Caterpillar, 482

U.S. at 393, 107 S.Ct. 2425. See, e.g., Metro. Life Ins.

Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95

L.Ed.2d 55 (1987) (former employee’s claims alleging

breach of contract, retaliatory discharge, and wrongful termination of disability benefits in state-court

complaint were preempted by ERISA and necessarily federal in character; removal under 28 U.S.C. §

1441(a) was therefore proper). “Where a complaint

raises issues to which federal law applies with complete preemptive force, the Court must look beyond

the face of the complaint in determining whether

remand is proper.” Green v. Arizona Cardinals Football Club, LLC, 21 F. Supp. 3d 1020, 1025 (E.D. Mo.

2014). See also Strong v. Republic Servs., Inc., 283 F.

Supp. 3d 759, 763 (E.D. Mo. 2017). If upon such examination I find that a federal statute provides “an

exclusive cause of action for the claim asserted and

also set[s] forth procedures and remedies governing

that cause of action,” I may conclude that plaintiffs

have “simply brought a mislabeled federal claim”

that could be asserted under some federal statute.

Johnson v. MFA Petroleum Co., 701 F.3d 243, 247-48

28a

(8th Cir. 2012) (internal quotation marks and citations omitted).

In addition, federal-question jurisdiction exists

where state law claims implicate significant federal

issues. Grable & Sons Metal Prods., Inc. v. Darue

Eng’g & Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162

L.Ed.2d 257 (2005). “The doctrine captures the commonsense notion that a federal court ought to be able

to hear claims recognized under state law that nonetheless turn on substantial questions of federal

law[.]”Id. While there is no single test for jurisdiction

over federal issues rooted in state-law claims between non-diverse parties, the relevant question is

“does a state-law claim necessarily raise a stated

federal issue, actually disputed and substantial,

which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Id. at 314,

125 S.Ct. 2363; see also Baker v. Martin Marietta

Materials, Inc., 745 F.3d 919, 924 (8th Cir. 2014).

Against this backdrop, I turn to defendants’ contention that the claims raised in plaintiffs’ amended

petition, although couched in terms of state-law violations, are completely preempted by the PAA and,

further, raise claims and/or significant federal issues

under CERCLA.

A. Price-Anderson Act

Defendants contend that the PAA confers exclusive federal jurisdiction over this action and completely preempts plaintiffs’ state-law claims. For the

following reasons, plaintiffs’ claims do not arise under the PAA.

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1. Understanding the Background and Purpose of

the PAA 2

The Price-Anderson system is a comprehensive,

compensation-oriented system of liability insurance

for Department of Energy (DOE) contractors and

Nuclear Regulatory Commission (NRC) licensees operating nuclear facilities. Under the Price-Anderson

system, there is a ready source of funds available to

compensate the public after an accident, and the

channeling of liability to a single entity and waiver

of defenses insures that protracted litigation will be

avoided. In short, the PAA provides a type of “no

fault” insurance, by which all liability after an accident is assumed to rest with the facility operator,

even though other parties (such as subcontractors or

suppliers) might be liable under conventional tort

principles.

The PAA was enacted in 1957 as an amendment

to the Atomic Energy Act (AEA) of 1954. The purpose of the AEA was to open up nuclear development

to civilian industry. But because of the risk of extensive liability potentially facing entities in the event

of a nuclear accident, civilian response to the AEA

was limited. Accordingly, to remove this deterrent to

private participation in the development of nuclear

energy, Congress passed the PAA to 1) assure adequate public compensation in case of a nuclear accident, and 2) set a limit on the liability of private industry. As enacted, the PAA established liability limits for commercial power plants licensed by the

2 The following background and summary is largely taken from

Senate Report No. 100-70 addressing the Price-Anderson

Amendments Act of 1988. S. Rep. No. 100-70, 1988

U.S.C.C.A.N. 1424, 1988 WL 169872.

30a

Atomic Energy Commission (AEC) (now licensed by

the NRC) through a combination of private insurance and indemnification by the federal government.

For contractor-operated activities of the AEC (now

contractor activities of the DOE), liability limits

were established by federal indemnification alone. 3

When enacted in 1957, the PAA provided federalquestion jurisdiction over “extraordinary nuclear occurrences” only. An “extraordinary nuclear occurrence” was defined in the AEA as “an occurrence

‘[t]hat has resulted or probably will result in substantial damages to persons offsite or property

offsite.’” S. Rep. No. 100-70, 15, 1988 U.S.C.C.A.N.

1424, 1427. Therefore, unless diversity jurisdiction

existed, most nuclear-exposure claims were litigated

in state court. See Nathan White, Arguments Not

Raised: How the Plaintiffs’ Missed Opportunity Led

to the Tenth Circuit’s Decision in June v. Union Carbide Corp., 2011 B.Y.U. L. Rev. 245, 248 (2011).

With the renewal of the PAA in 1966, Congress required licensees and contractors to waive traditional

defenses of state tort law against claims of an extraordinary nuclear occurrence in order to facilitate

3 With the Energy Reorganization Act of 1974 (ERA), Congress

abolished the AEC and created the NRC, to which some of the

AEC’s duties were transferred, including all of the AEC’s licensing functions. All licenses previously issued by the AEC

and in effect upon ERA’s passage remained in effect. Pub. L.

No. 93-438, 88 Stat. 1233 (1974). The ERA also created the Energy Research and Development Administration (ERDA), which

assumed the AEC’s research and development responsibilities.

Id. In 1977, the ERDA was terminated and its responsibilities

were transferred to the newly-created DOE. See Department of

Energy Organization Act, Pub. L. No. 95-91, 91 Stat. 565

(1977).

31a

recovery by plaintiffs. S. Rep. No. 100-70, 15, 1988

U.S.C.C.A.N. 1424, 1427.

In 1975, Congress added a provision to the PAA to

phase out federal indemnity for NRC licensees and

replace it with a self-insurance pool-type arrangement. Under this arrangement, in the event that

damages from a commercial nuclear power plant accident were likely to exceed the coverage available

from private insurance, each NRC reactor licensee

would be assessed up to a capped amount to pay a

pro-rated share of the damages in excess of private

insurance available. 4 For such accidents, therefore,

the limited liability plan consisted of a combination

of the maximum amount of private insurance and

contributions made by each of the reactor licensees.

The federal-indemnification plan remained in place

for DOE contractors for DOE-contractor-related accidents. S. Rep. No. 100-70, 15, 1988 U.S.C.C.A.N.

1424, 1428. However, whether to enter into indemnification agreements with such contractors was at the

Energy Secretary’s discretion, based on the Secretary’s determination as to whether the contractor’s

activities involved the risk of public liability for a

“substantial” nuclear incident. 5

In 1988, Congress passed the Price-Anderson

Amendments Act (“1988 PAA”), which, among other

things, removed the Energy Secretary’s discretion to

indemnify DOE contractors. Under the 1988 PAA,

4 Licensees were required to provide proof to the NRC that they

had the maximum amount of private nuclear liability insurance. S. Rep. No. 100-70, 43, 1988 U.S.C.C.A.N. 1424, 1452.

5 See Dep’t of Energy Rep. to Congress on the Price-Anderson Act

(March 1999), available at https://www.energy.gov/sites/

prod/files/gcprod/documents/paa-rep.pdf.

32a

federal indemnification to DOE contractors was now

required for all nuclear activities, regardless of

whether the risk of a nuclear incident was “substantial” or not. The purpose of this amendment was to

guarantee to the public that the Price-Anderson system would be available to provide compensation in

the event of a nuclear incident. Accordingly, the

DOE was now mandated to “enter into agreements of

indemnification...with any person who may conduct

activities under a contract with the Department of

Energy that involve the risk of public liability[.]”42

U.S.C. § 2210(d)(1)(A). See also 48 C.F.R. §§

950.7006, 952.250-70. With these mandated agreements, the DOE was charged with providing indemnification to such persons on claims for public liability that “arise[ ] out of or in connection with the activities under [the DOE] contract” and “arise[ ] out of

or result[ ] from a nuclear incident[.]”). 48 C.F.R. §

952.250-70(d)(2).

The 1988 PAA amendments also broadened federal jurisdiction beyond just “extraordinary nuclear

occurrences” – that is, those occurrences involving

“substantial” damages – and created a federal cause

of action for “any public liability action arising out of

or resulting from a nuclear incident.” 42 U.S.C. §

2210(n)(2). The amendments also provided that such

public liability actions filed in state court were to be

removed to federal court. Id.

2. Claims Arising Under the PAA

“With respect to any public liability action arising

out of or resulting from a nuclear incident, the United States district court in the district where the nuclear incident takes place,...shall have original juris-

33a

diction without regard to the citizenship of any party

or the amount in controversy.” 42 U.S.C. §

2210(n)(2). A “public liability action” is “any suit asserting public liability.” 42 U.S.C. § 2014(hh). And

“public liability” means “any legal liability arising

out of or resulting from a nuclear incident[.]”42

U.S.C. § 2014(w). Accordingly, only suits that involve

“nuclear incidents” as defined by the PAA are subject

to PAA federal-question jurisdiction. See Cook v.

Rockwell Int’l Corp., 790 F.3d 1088 (10th Cir. 2015);

Cotroneo v. Shaw Env’t & Infrastructure, Inc., 639

F.3d 186 (5th Cir. 2011); Strong v. Republic Servs.,

Inc., 283 F. Supp. 3d 759 (E.D. Mo. 2017); McClurg

v. MI Holdings, Inc., 933 F. Supp. 2d 1179 (E.D. Mo.

2013); Banks v. Cotter Corp., No. 4:18-CV-00624

JAR, 2019 WL 1426259 (E.D. Mo. Mar. 29, 2019).

Recently, this district court has had the opportunity to squarely address the question of whether a

“nuclear incident” under the PAA requires the alleged unlawful conduct to have arisen from NRClicensed activities or under a DOE contract with

agreements of indemnification. See Strong v. Republic Servs., Inc., 283 F. Supp. 3d 759 (E.D. Mo. 2017);

Banks v. Cotter Corp., No. 4:18-CV-00624 JAR, 2019

WL 1426259 (E.D. Mo. Mar. 29, 2019). In both cases,

the court held that there cannot be a nuclear incident under the PAA without such an applicable license or indemnity agreement. Strong, 283 F. Supp.

3d at 772; Banks, 2019 WL 1426259, at *6. For the

following reasons, I agree with this conclusion.

As defined in the 1988 PAA, a “nuclear incident”

is

any occurrence, including an extraordinary nuclear occurrence, within the United States

34a

causing, within or outside the United States,

bodily injury, sickness, disease, or death, or loss

of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous

properties of source, special nuclear, or byproduct material....

42 U.S.C. § 2014(q). In further defining “nuclear incident,” § 2014(q) refers to the term’s use in 42

U.S.C. § 2210(c) and (d), which, significantly, governs the PAA indemnification plan for NRC licensees

and DOE contractors. 6 Specifically, § 2210(c) requires the NRC, “with respect to licenses issued between August 30, 1954, and December 31, 2025,” to

“agree to indemnify and hold harmless the licensee

and other persons indemnified ... from public liability arising from nuclear incidents[.] ... Such a contract of indemnification shall cover public liability

6 And provided further, That as the term [nuclear incident] is

used in section

2210(d) of this title, it shall include any such occurrence outside

the United States if such occurrence involves source, special

nuclear, or byproduct material owned by, and used by or under

contract with, the United States: And provided further, That as

the term is used in section 2210(c) of this title, it shall include

any such occurrence outside both the United States and any

other nation if such occurrence arises out of or results from the

radioactive, toxic, explosive, or other hazardous properties of

source, special nuclear, or byproduct material licensed pursuant to subchapters V, VI, VII, and IX of this division, which is

used in connection with the operation of a licensed stationary

production or utilization facility or which moves outside the

territorial limits of the United States in transit from one person

licensed by the Nuclear Regulatory Commission to another person licensed by the Nuclear Regulatory Commission.

42 U.S.C. § 2014(q).

35a

arising out of or in connection with the licensed activity.” 42 U.S.C. § 2210(c) (emphasis added). Section

2210(d) requires the DOE to enter into indemnification agreements with “any person who may conduct

activities under a contract with the Department of

Energy that involve the risk of public liability[.]”42

U.S.C. § 2210(d)(1)(A) (emphasis added). Section

2210(d) further requires these indemnification

agreements to be “the exclusive means of indemnification for public liability arising from activities”

conducted under DOE contracts. 42 U.S.C. §

2210(d)(1)(B)(i)(I). 7

Accordingly, when the definition is read in toto

and in conjunction with § 2210, “nuclear incidents”

are those occurrences within and outside the United

States that arise from activities conducted under

DOE contracts or in connection with NRC-licensed

activity. When considered with the plain text of §

2210(c) and (d) – that public liability actions can

arise only from activities under a contract with the

DOE or in connection with NRC-licensed activity – I

must agree with the court’s observation in Strong

that “the terms ‘nuclear incident’ and ‘occurrence’

are inextricably intertwined with ‘licenses’ and ‘indemnification agreements,’ thus suggesting licenses

and indemnification agreements are an integral part

of the PAA’s statutory scheme[.]”Strong, 283 F.

Supp. 3d at 771. In light of this, I also agree with the

7 To the extent defendants argue that “other persons indemni-

fied” shows Congress’s consideration that PAA coverage would

extend to non-NRC-licensees and/or non-DOE- contractors, the

PAA clearly states that any statutory indemnification – to

whomever – is for only those liabilities that arise out of or are

connected with activities conducted under NRC licenses or

DOE contracts. 42 U.S.C. § 2210(c), (d).

36a

Strong court’s conclusion that, therefore, “there cannot be a nuclear incident without an applicable license or indemnity agreement.” Id.

My review of the legislative history of the PAA

supports this conclusion. Nothing in the PAA – either originally enacted or through its evolution –

provides that it is, or was intended to be, the exclusive remedy for all claims involving nuclear radiation. Instead, as defined by Congress itself, “The

Price-Anderson system is a comprehensive, compensation-oriented system of liability insurance for Department of Energy contractors and Nuclear Regulatory Commission licensees operating nuclear facilities.” S. Rep. No. 100-70, 14, 1988 U.S.C.C.A.N.

1424, 1426 (emphasis added). The stated purpose of

the 1988 PAA amendments was “to modify and extend the portions of the Price-Anderson Act that

provide for public liability coverage for contractors of

the Department of Energy,” S. Rep. No. 100-70, 12,

1988 U.S.C.C.A.N. 1424, 1425, and the amendments

achieved this in part by mandating federal indemnification to DOE contractors (and subcontractors) for

all risks of nuclear incidents arising out of their

DOE-contracted activities instead of only risks determined at the discretion of the Secretary of Energy

to be substantial. The amendments further achieved

the intended purpose by removing the requirement

that incidents be “substantial” in order to fall within

the federal court’s subject-matter jurisdiction. However, nothing in the 1988 amendments altered the

purpose of the PAA, which is to provide a compensation plan and liability assessment for nuclear incidents arising out of DOE-contracted activity and

37a

NRC-licensed activity. See Banks, 2019 WL 1426259,

at *8.

[I]n light of the PAA’s concerns related to liability limitation and indemnification, the Court is

not convinced that the 1988 amendments were

meant to extend the reach of the PAA to activities not covered by applicable licenses or indemnity agreements. Defendants’ construction

overlooks the original purposes and framework

of the AEA and the PAA – to require those involved in the nuclear industry to obtain licenses

and maintain financial protections.

Id.

The statutory construction and legislative history

of the PAA shows it to apply only to public liability

claims arising out of NRC-licensed activity or DOEcontracted activity operating under indemnification

agreements. See Strong 283 F. Supp. 3d at 772;

Banks, 2019 WL 1426259, at *6. The amended petition here does not allege any such activity. The PAA

does not apply to plaintiffs’ claims.

3. Cotter Corporation’s Source Material License

In their notice of removal, defendants aver that

Cotter Corporation was the entity that handled, processed, and moved the radioactive wastes from the

Latty Site to the Landfill. 8 Defendants further aver

that Cotter Corporation engaged in this activity pursuant to a Source Material License issued to it (Cotter) by the AEC in 1969. Defendants argue, therefore, that to the extent a license is required for federal jurisdiction under the PAA, plaintiffs’ claims in8 Cotter Corporation is not a defendant in this action.

38a

volve radioactive materials that were handled and

disposed of by an AEC licensee, making the licensed

activity inextricably part of the claims and thus

within the PAA.

Plaintiffs argue that the radioactive wastes at issue in this action are uranium mill tailings made

from the uranium processing in downtown St. Louis.

Plaintiffs urge me to adopt the Strong court’s reasoning that Cotter’s 1969 license could not have covered

the radioactive material delivered by Cotter to the

Landfill in 1973 because Congress did not include

uranium mill tailings within the definition of covered “byproduct materials” until 1978. See Strong,

283 F. Supp. 3d at 773. In their amended petition,

however, plaintiffs do not specifically allege that the

material at issue was uranium mill tailings. Instead,

plaintiffs claim that the off-site radioactive waste

found on their properties “has the fingerprint” of the

uranium ore processed in St. Louis that generated

the “hazardous, toxic, carcinogenic, radioactive

wastes” that were dumped into the Landfill. (ECF 13

at ¶¶ 4, 98 B., 112.)9

Regardless of whether uranium mill tailings are

the radioactive wastes at issue in this case or whether plaintiffs properly pled that they are, Cotter’s license nevertheless does not affect my determination

that the PAA does not apply to plaintiffs’ claims.

With their reply in support of remand, plaintiffs submitted

declarations from experts declaring, inter alia, that the wastes

at issue here are in fact mill tailings and, further, that the PAA

does not apply to plaintiffs’ claims. Defendants ask me to strike

these declarations. Because I have not considered these declarations in making my determination here, I will deny defendants’ motion to strike as moot.

9

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Cotter Corporation’s 1969 Source Material License authorized it to “receive, possess and import

the source material [uranium]; to use such material

for the purpose(s) and at the place(s) designated

[Latty Site]; and to deliver or transfer such material

to persons authorized to receive it[.]” (ECF 1-5,

Feingold Decl., Exh. D.) As alleged by plaintiffs in

their amended petition, their damages do not arise

from the use of the radioactive material at the Latty

Site, but rather from the defendants’ unauthorized

receipt of the material and their unauthorized use of

the material at an unauthorized site, the Landfill.

Cotter’s Source Material License did not cover its delivery or transfer of the material to such unauthorized entities. Nor did it cover defendants’ activities

at the Landfill. Cotter’s license therefore does not

provide a basis for federal subject-matter jurisdiction

under the PAA. See Banks, 2019 WL 1426259, at *9.

None of the defendants here is an indemnitee or

licensee as contemplated under the PAA, and their

alleged conduct does not arise from NRC-licensed

activity or under a DOE contract with indemnification. The PAA therefore does not apply to plaintiffs’

claims, and defendants have failed to meet their

burden of establishing federal-question jurisdiction

under the PAA.

B. CERCLA

Defendants claim that the injunctive relief sought

in plaintiffs’ amended petition – specifically, for

complete clean-up of the contamination, to prevent

further contamination, and to decrease contamination risks to plaintiffs’ property – constitutes a

CERCLA challenge because such relief would inter-

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fere with the EPA’s remediation plans at the federal

Superfund site. They further contend that because

plaintiffs allege that the Landfill is the source of the

radioactive contamination found on their properties,

and the Landfill is a federal Superfund site over

which the EPA has exclusive jurisdiction, then the

EPA likewise has exclusive jurisdiction over their

properties under CERCLA. I reject both arguments.

1. CERCLA Challenge

Nothing in plaintiffs’ amended petition shows that

they are requesting relief that would interfere with

the EPA’s remediation plans. Although plaintiffs

make reference to the Landfill being a Superfund

site, their claims do not expressly challenge the effectiveness of the Landfill remedy, request modification of the remedial plan, or seek specific action that

could conflict with the remediation process. 10 And

defendants offer no explanation as to how plaintiffs’

requested relief would alter EPA’s plans in a way

10 I disagree with defendants that plaintiffs’ counsel’s remarks

made at a press conference regarding site clean-up constitute

“other paper” under 28 U.S.C. § 1446(b)(3) sufficient to confer

federal jurisdiction over this action. (See ECF 39 at pp. 21-22.)

Regardless of the later transcription of the remarks, nothing

before the Court shows that the press conference at issue here

approached the level of authenticity or reliability afforded

court-recognized “other paper” designations, such as deposition

transcripts, discovery responses, settlement offers, or other official communications between parties. See Huffman v. Saul

Holdings Ltd. P’ship, 194 F.3d 1072, 1078 (10th Cir. 1999)

(“[T]he circumstances permitting removal must normally come

about as a result of a voluntary act on the part of the plaintiff.”)

(citing DeBry v. Transamerica Corp., 601 F.2d 480, 486-88

(10th Cir. 1979)). See also S.W.S. Erectors, Inc. v. Infax, Inc., 72

F.3d 489, 494 (5th Cir. 1996).

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that is somehow inconsistent with any particular

federal obligation or requirement.

Plaintiffs seek relief only under common law theories that have long been recognized by Missouri

courts as a basis for recovery from parties found to

be responsible for personal injury and property damage occurring as a result of the release of toxic chemical wastes or other hazardous substances into the

environment. E.g., Elam v. Alcolac, Inc., 765 S.W.2d

42 (Mo. Ct. App. 1988) (nuisance, negligence); Kansas City v. W.R. Grace & Co., 778 S.W.2d 264 (Mo.

Ct. App. 1989) (negligence, strict liability, civil conspiracy), abrogated on other grounds by Ellison v.

Fry, 437 S.W.3d 762 (Mo. banc 2014). Plaintiffs do

not cite CERCLA as a basis for their claims; nor do

they seek reimbursement of response costs or any

other form of relief available under its provisions.

Moreover, CERCLA does not completely preempt

plaintiffs’ claims or otherwise foreclose plaintiffs

from relying on common law theories for the relief

they seek. In the absence of complete preemption,

defendants’ contentions regarding the potential effect of injunctive relief on the existing remedial program can only be regarded as federal defenses to

properly raised state law claims, which state courts

are competent to adjudicate. See In re Pfohl Bros.

Landfill Litig., 67 F. Supp. 2d 177, 184-85 (W.D.N.Y.

1999) (CERCLA neither preempts state law toxic

tort claims nor creates a federal cause of action for

personal injury or property damage caused by release of hazardous substances; defendants’ interjection of issues relating to applicability of CERCLA

found insufficient to confer federal-question jurisdiction) (citing Merrell Dow Pharm., Inc. v. Thompson,

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478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650

(1986) (“A defense that raises a federal question is

inadequate to confer federal jurisdiction.”)).

2. Exclusive EPA Jurisdiction

There is no dispute that the EPA has exclusive jurisdiction over the Landfill Superfund site. Defendants argue that this jurisdiction also includes plaintiffs’ contaminated properties because a “facility”

over which the EPA has exclusive jurisdiction under

CERCLA is defined as “any site or area where a

hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located[.]”42 U.S.C. § 9601(9) (emphasis added). Accordingly, defendants argue, because hazardous materials allegedly came to be located on plaintiffs’ properties, those properties are necessarily within the

EPA’s exclusive jurisdiction under CERCLA. To take

defendants’ argument to its logical conclusion, then,

even with a properly-pled claim under 42 U.S.C. §

9607, private property owners could themselves be

liable under CERCLA because their contaminated

property, for which they otherwise would seek to recover reimbursement for response costs, would itself

be a “facility” even without release of hazardous material from their property. This is not a logical reading of CERCLA, nor does it further CERCLA’s intended purpose.

As to defendants’ argument that the EPA nevertheless has exclusive jurisdiction over the Landfill

Superfund site, nothing in the amended petition

shows that plaintiffs seek relief that would require

defendants to take action that would overlap with,

alter, or contradict any EPA remedy that is being re-

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viewed and/or or taken at the site under CERCLA.

Indeed, nothing in the amended petition takes away

from the EPA’s jurisdiction over the Superfund site.

CERCLA does not completely preempt state tort liability for damages caused by the release of hazardous substances, See Niagara Mohawk Power Corp. v.

Chevron U.S.A., Inc., 596 F.3d 112, 138 (2d Cir.

2010), and the causes of action set forth in the

amended petition do not necessarily depend on resolution of substantial questions regarding responsecost liabilities or other obligations imposed by CERCLA. Nor have defendants demonstrated that plaintiffs are making a CERCLA challenge by requesting

relief that would interfere with the EPA’s remediation plans. “[T]he mere presence of a federal issue in

a state cause of action does not automatically confer

federal-question jurisdiction.” Merrell Dow Pharm.,

478 U.S. at 813, 106 S.Ct. 3229; see also MSOF Corp.

v. Exxon Corp., 295 F.3d 485, 491-92 (5th Cir. 2002)

(finding that neither CERCLA nor a federal consent

decree created federal “arising under” jurisdiction

over plaintiffs’ state law claim).

Accordingly, resolving all doubts against removal,

I find that defendants have failed to meet their burden of establishing that the amended petition raises

any actually disputed and/or substantial issues arising under CERCLA. Grable & Sons, 545 U.S. at 314,

125 S.Ct. 2363.

Class-Action Jurisdiction Under CAFA

CAFA “confers federal jurisdiction over class actions where, among other things, 1) there is minimal

diversity; 2) the proposed class contains at least 100

members; and 3) the amount in controversy is at

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least $5 million in the aggregate.” Plubell v. Merck &

Co., 434 F.3d 1070, 1071 (8th Cir. 2006) (citing 28

U.S.C. § 1332(d)); see also Raskas v. Johnson &

Johnson, 719 F.3d 884, 886-87 (8th Cir. 2013). “Although CAFA expanded federal jurisdiction over class

actions, it did not alter the general rule that the party seeking to remove a case to federal court bears the

burden of establishing federal jurisdiction.” Westerfeld v. Independent Processing, LLC, 621 F.3d 819,

822 (8th Cir. 2010).

Plaintiffs do not dispute that defendants met their

burden of establishing federal jurisdiction under

CAFA. They claim, however, that the “local controversy” exception to CAFA applies to the circumstances of this case, requiring me to decline to exercise jurisdiction and remand the matter to state

court. I agree.

Congress established two mandatory exceptions to

CAFA’s broad expansion of federal jurisdiction over

class actions. Under the local-controversy exception

invoked by the plaintiffs here, a district court must

decline to exercise jurisdiction over a class action in

which 1) more than two-thirds of the class members

in the aggregate are citizens of the state in which the

action was originally filed, 2) at least one defendant

“from whom significant relief is sought by members

of the plaintiff class” and “whose alleged conduct

forms a significant basis for the claims asserted by

the proposed plaintiff class” is a citizen of the state

in which the class action was originally filed, 3) the

principal injuries were incurred in the state in which

the action was filed, and 4) no other class action alleging similar facts was filed in the three years prior

to the commencement of the current class action. 28

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U.S.C. § 1332(d)(4)(A); Westerfeld, 621 F.3d at 822.

“[T]he purpose of each of these criteria is to identify

a truly local controversy – a controversy that uniquely affects a particular locality to the exclusion of all

others.” S. Rep. No. 109-14, 39, 2005 U.S.C.C.A.N. 3,

38. “[C]lass actions with a truly local focus should

not be moved to federal court ... because state courts

have a strong interest in adjudicating such disputes.” Id. Accordingly, where the controversy “at its

core” is a local one, and the state court where it was

brought has a strong interest in resolving the dispute, the case should remain in state court. S. Rep.

No. 109-14, 41, 2005 U.S.C.C.A.N. 3, 39.

In seeking remand on the basis of the localcontroversy exception, plaintiffs bear the burden of

establishing that the exception applies. Westerfeld,

621 F.3d at 822-23. I may look only to the removed

petition in deciding whether the local controversy

criteria are met. Coleman v. Estes Express Lines, 631

F.3d 1010, 1017 (9th Cir. 2011), quoted approvingly

in City of O’Fallon, Mo. v. CenturyLink, Inc., 930 F.

Supp. 2d 1035, 1049-50 (E.D. Mo. 2013); Moore v.

Scroll Compressors, LLC, No. 14-03109-CV-S-GAF,

2014 WL 12597511, at *8 (W.D. Mo. July 8, 2014).

Defendants argue that plaintiffs cannot meet the

first two elements of the local-controversy exception,

namely, the two-thirds requirement and the local

“significant” defendant requirement. Their argument

as to the two-thirds requirement can be disposed of

easily. In the amended petition, plaintiffs seek relief

on behalf of themselves and of the putative class.

The named plaintiffs in this action are Missouri citizens. As for the putative class, plaintiffs identify two

subclasses whose members are limited to “Missouri

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citizens.” Although defendants argue that this class

definition runs counter to plaintiffs’ intention to seek

relief for all individuals and businesses in the vicinity of the Landfill, it is well understood that plaintiffs

are the masters of their complaint. The Fair v.

Kohler Die & Specialty Co., 228 U.S. 22, 33 S.Ct.

410, 57 L.Ed. 716 (1913). I will not read into the

amended petition the existence of non-Missouricitizen class members where they are expressly excluded. Since the only class members in this action

are Missouri citizens, plaintiffs have met the twothirds requirement of the local-controversy exception.

I also conclude that plaintiffs have met the local

significant defendant requirement. When plaintiffs

filed this action and at the time they amended their

petition, named defendant Rock Road Industries was

a Missouri citizen, having been incorporated in the

State of Missouri and having its principal place of

business in Missouri. Although defendants aver that

Rock Road Industries has since been merged into

Bridgeton Landfill, an LLC whose membership

structure shows it to be a citizen of Delaware and

Arizona, I look only to the removed petition to determine whether the local controversy criteria are

met. Accordingly, because there is no dispute that

Rock Road Industries was properly identified as a

citizen of Missouri in the amended petition that was

removed to this Court, and this class action was originally filed in Missouri, Rock Road Industries satisfies the “local” defendant element of the analysis.

It likewise satisfies the “significant” element. The

first criterion is whether “significant relief is sought”

from the local defendant. The second criterion is

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whether the defendant’s “alleged conduct forms a

significant basis for the claims” asserted by the proposed class. Again, I look only to the removed petition in deciding whether both criteria are met. Coleman, 631 F.3d at 1017.

As to the “significant relief” provision, I look to the

relief plaintiffs seek from the local defendant, and

not the relief that may be obtained from that defendant. Coffey v. Freeport McMoran Copper & Gold,

581 F.3d 1240, 1244 (10th Cir. 2009), quoted approvingly in CenturyLink, 930 F. Supp. 2d at 1049. A

plaintiff-class seeks significant relief from a local defendant where all the class members have claims

against the defendant and all class members want to

hold the local defendant jointly and severally liable

for their claims. Id. We have that, and more, here.

The amended petition in this case seeks damages

equally from all defendants. There is nothing in the

amended petition to indicate that Rock Road Industries is a nominal defendant or that its subsidiary

status undercuts the substantial monetary relief

sought by plaintiffs. In addition, the amended petition seeks injunctive relief from all defendants, and

nothing in the petition indicates that the injunctive

relief sought is in and of itself insignificant or that

Rock Road Industries would be incapable of complying with an injunction. Plaintiffs have thus satisfied

the “significant relief” requirement of the localcontroversy exception. See CenturyLink, 930 F.

Supp. 2d at 1051.

With the “significant basis” provision, there is no

“absolute quantitative requirement.” Kaufman v.

Allstate N.J. Ins. Co., 561 F.3d 144, 156 (3d Cir.

2009), quoted approvingly in CenturyLink, 930 F.

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Supp. 2d at 1047. Instead, I must compare the alleged conduct of the local defendant to the alleged

conduct of all the defendants against the backdrop of

all of the claims of the action. Id.; see also Westerfeld,

621 F.3d at 825. “The local defendant’s alleged conduct must be an important ground for the asserted

claims in view of the alleged conduct of all the Defendants.” Kaufman, 561 F.3d at 157 (emphasis in

Kaufman).

Here, plaintiffs’ amended petition alleges the

same claims against all defendants. It claims that

the defendants all engaged in the same conduct, including knowingly and improperly accepting radioactive wastes; improperly dumping and spreading such

wastes over several acres of the Landfill; and causing radioactive contaminants to be dispersed, resulting in damage to neighboring properties and communities. Plaintiffs also claim that all defendants

maintained daily control over the management, operation, and environmental decisions of the Landfill,

thereby making them all responsible for the damages alleged. The conduct of Rock Road Industries is

the same conduct alleged against the other defendants. There is no need or requirement for me to conduct a “mini-trial” to adduce evidence as to the specific conduct of each of the defendants. Coffey, 581

F.3d at 1245; CenturyLink, 930 F. Supp. 2d at 1051.

Rock Road Industries’ status as a subsidiary is irrelevant since the conduct alleged is the same for all

defendants. The amended petition’s allegations indicate that Rock Road Industries’ conduct forms a significant basis of all claims asserted.

Finally, contrary to defendants’ assertion, plaintiffs’ filing of their motion to remand less than two

49a

months after removal was reasonable. See Graphic

Commc’ns Local 1B Health & Welfare Fund A v. CVS

Caremark Corp., 636 F.3d 971, 975-76 (8th Cir.

2011) (§ 1447(c)’s 30-day requirement to file motion

to remand does not apply to CAFA’s localcontroversy exception; instead, remand motion must

be filed within a “reasonable” time). At the time

plaintiffs sought remand, the case was still in its infancy. The three removing defendants had filed their

answers, and an order scheduling the Rule 16 conference had been entered. Discovery had not yet begun. Other than a within-district transfer between

judges, nothing else of note happened in the case.

Further, CAFA was not the only basis upon which

the defendants removed this case from state court.

Given that additional complex issues regarding subject-matter jurisdiction were present, it was not unreasonable for plaintiffs to address all of these issues

in one motion to remand instead of piecemeal. Filing

such a comprehensive motion 56 days after removal

was not unreasonable in the circumstances of this

case.

Conclusion

Defendants have failed to meet their burden of establishing federal subject-matter jurisdiction for

purposes of the PAA and CERCLA. Further, plaintiffs have met their burden of establishing that the

local-controversy exception to CAFA jurisdiction applies in this case. Accordingly, this action must be

remanded to state court. In light of this determination, I need not address plaintiffs’ argument that applying the PAA to their claims would deprive them of

due process.

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Accordingly, for all of the foregoing reasons,

IT IS HEREBY ORDERED that plaintiffs’ Motion for Remand [27] is granted. Their alternative

Motion for Leave to Amend and Remand is denied as

moot.

IT IS FURTHER ORDERED that defendants’

Motion to Strike Plaintiffs’ Experts or, in the Alternative, for Leave to File Sur-Reply [45]; and Motion

for Oral Argument [47] are denied as moot.

IT IS FURTHER ORDERED that this case is

remanded to the Circuit Court of St. Louis County,

Missouri, from which it was removed.

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 19-2072

John C. Kitchin, et al.

Appellees

v.

Bridgeton Landfill, LLC, et al.

Appellants

Appeal from U.S. District Court for the Eastern

District of Missouri - St. Louis.

(4:18-cv-00672-CDP)

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

August 12, 2021

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans